Abulafia and Geary (No. 2)

[2013] FamCA 719

FAMILY COURT OF AUSTRALIA

ABULAFIA & GEARY (NO. 2) [2013] FamCA 719

FAMILY LAW – PRACTICE AND PROCEDURE – Payment of the costs of the preparation of the expert report

APPLICANT: Mr Abulafia

RESPONDENT: Ms Geary

FILE NUMBER: PAC 395 of 2013

DATE DELIVERED: 16 August 2013

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 16 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Givney

SOLICITOR FOR THE APPLICANT:

Ms Rafton

Rafton Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Schonell SC

SOLICITOR FOR THE RESPONDENT:

Ms Staka

Champion Legal

Orders

1. I grant leave to the legal representatives of both parties to inspect material produced on subpoena by F Investigation Agents, Mr E Clinical Psychologist and Workcover NSW.

2. The document signed by each of the parties shall become Court’s Exhibit 1 in today’s proceedings, annexed hereto.

3. By consent, I make orders in accordance with paragraphs 1 to 7, 9 and 10 amending paragraph 6 to include “or Psychologist” after the word “Psychiatrist”.

4. The father pay the cost of the preparation of the expert’s report in the first instance and the proportion of the cost to be borne by each of the parties to be finally determined at the final hearing.

5. I stand this matter over for mention in a Hearing Callover at 10.00 am on Tuesday 24 September 2013.

Court’s Exhibit 1:

1. That the Order made on 11 March 2013 permitting the father to spend time with the child born on … June 2013 namely, M (“the child”) be discharged pending further Order.

2. That pursuant to Section 68L of the Family Law Act 1975, an Independent Child’s Lawyer shall be appointed to represent the interests of the child.

3. That the Legal Aid Commission of New South Wales is requested to make arrangements as soon as practicable to facilitate the above order.   

4. That the Solicitor for Mother advise the Senior Solicitor, Family Law Litigation Section of the Legal Aid Commission of New South Wales of this Order within 14 days. 

5. That within 14 days of the date of these Orders, each party make available to the Legal Aid Commission of New South Wales copies of all Applications and Affidavits upon which that party relies, together with any existing Orders and copies of any relevant Reports. 

6. That pursuant to Division 15.5.2 of the Family Law Rules 2004, a Psychiatrist or Psychologist agreed between the parties and failing agreement in consultation with the Independent Child Lawyer, be appointed as a Single Expert Witness to enquire into, and prepare a Report upon the matters relating to both parties and the child, and in preparing the Report, the Psychiatrist or Psychologist be requested to consider the following matters:

   (a)The father’s mental health.

   (b)The time that the child spend with the father and the likely effect of such an Order on the child. 

   (c)The risk of the father causing and/or sustaining psychological harm to the mother.

   (d)The child’s attachment and bonding to:

   (i)     The mother and her extended family.

   (ii)The father and his extended family.

   (e)Any risk to the parenting capacity of the Mother as a consequence of the Father spending time with the child.

   (f)Whether the Father as a consequence of any mental health condition poses a risk to the child and/or the Mother. 

   (g)The capacity of each of the parents to provide for the physical and psychological needs of the child.

   (h)The attitude of each of the parents to the responsibility of parenting.

   (i)Whether either parent would benefit from attending a parenting course or attending for psychological treatment or advice. 

   (j)Any other matters which the Independent Child’s Lawyer and/or Single Expert consider relevant in the Court’s consideration of the child’s best interest.    

7. That the parties make available to the Single Expert copies of the following:

   (a)Orders, Applications and Affidavits relied upon in the proceedings.

   (b)Documents produced under Subpoena in the proceedings.

   (c)A bundle of email communication between the Father and the Mother. 

   (d)Any other relevant document. 

   (e)Video Discs provided by F Investigation Agents.

8. No order.

9. That upon the appointment of the Independent Child’s Lawyer, the matter be relisted for further mention. 

10. That the parties’ costs of today be reserved. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Abulafia & Geary (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 395 of 2013

Mr Abulafia

Applicant

And

Ms Geary

Respondent

REASONS FOR JUDGMENT

1. The parties in this matter have reached agreement in terms of the further conduct of these proceedings, for an Independent Children’s Lawyer and also that there should be a form of expert report that relates to issues mainly of the father’s mental health and the impact that those issues may have upon the child, together with the issue of the psychological harm to the mother.  There are also issues relating to the child’s attachment and parenting capacity and overall, whether there is any mental health condition suffered by the father and whether there is an issue of risk to the mother.  Most certainly it will be a very helpful, and I think quite essential, report that will assist the Court. 

2. The question to be determined today relates to the costs of the preparation of the expert’s report.  Mr Givney on behalf of the father proposes that that cost be shared between the parties.  Mr Schonell on behalf of the mother proposes that the father pay the costs of the preparation of the report in the first instance and that the matter not be finally determined at this stage. 

3. Mr Givney essentially says that, on balance, the parties have assets that are not substantially different.  There is a difference in income, but that it’s not significant.  He says that so far as the issue of child support is concerned that, essentially, it has been beyond his client’s capacity to make those payments because of information or impediments that the mother has been placing in providing essential information. 

4. Mr Schonell says that, in fact, their incomes are very different and that there is nothing that the mother is doing that causes an impediment to the father paying child support, and that currently she is in quite a parlous financial state, essentially because of injuries occasioned on 17 May 2013, and that she is currently not working. 

5. In addition, Mr Schonell submits that because the provision of hours of video tape, (which I have already expressed a view about in that I really cannot see how that, bearing in mind what it appears that it is likely to show, really would assist an expert of this nature at all,) is something that the father wants included and it has actually been described as some unique observations that would assist, then really it is the father who ought to be paying for it, at least in the first instance as it is likely that it will be charged on an hourly rate. 

6. Overall, in any event, the mother’s legal representative submits that all that is being sought is that the father pay for the report in the first instance and that it can be adjusted later and that this is not the final determination.  Looking at each of the matters submitted, I do not accept a submission that the financial resources of the two parties are roughly equal.  I think there is a particularly significant difference in income, especially at the moment with the mother having been incapacitated for some time.

7. I also agree with the submission that it does not seem that the mother is in fact providing some sort of impediment to the father paying some child support.  It could have been offered for quite some time.  Even if the calculations are not exact, it certainly would be a demonstration of some good will or desire to at least contribute towards the expenses of the child, and I see no reason why that could not have been commenced.

8. I also agreed with the submission that if the father feels that the five hours of video tape are going to assist the expert in the preparation of the report, where it does not appear to be apparent to me as to why that kind of evidence or matters observed on the video tape would assist a report of this kind, it seems to me that on balance that the father ought to pay at this stage upfront. 

9. I therefore propose to make an order that the father bear the cost of the preparation of the expert’s report in the first instance and the proportion of the costs to be borne by each of the parties shall be finally determined at the final hearing.

10. I therefore make the orders as set out at the forefront of these Reasons for Judgment.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 16 August 2013.

Associate:                 

Date:    5 September 2013